ST. ALBANS — A mistrial has been declared in the prostitution case of former state Sen. Norman McAllister.
The action came after a juror told the judge Friday morning he remembered hearing a news report that contained information not introduced into evidence.
“We’re disappointed,” Robert Katims, McAllister’s attorney, said late Friday morning after the courtroom proceeding. “We want to get this case to verdict with 12 jurors and obviously we can’t control everything.”
Franklin County Deputy State’s Attorney John Lavoie, who agreed with the defense attorney’s request for a mistrial after the juror was removed from the panel, declined comment outside of court Friday.
When asked if he intended to retry McAllister on the misdemeanor prohibited acts charge, Lavoie walked away and began singing what sounded like an ABBA song.
Judge Michael Kupersmith, who declared the mistrial, gave the prosecution 45 days to decide if they will proceed with a new trial.
McAllister, who has maintained his innocence, said he was “very disappointed.”
“I’ve played by the rules all my life, I haven’t broken any laws — a couple of speeding tickets, I’m sorry,” McAllister said. “(I’ve) done everything I thought you should do and I have these accusations brought down on me, and the state and everyone comes down on me, like I’m the No. 1 criminal.”
The trial that began Thursday followed a Vermont Supreme Court decision in November. The state’s highest court overturned McAllister’s earlier conviction on the prohibited acts charge, leading to the retrial in the St. Albans courthouse.
The prosecution alleged that the ex-Franklin County state senator had prostituted a woman living and working on his Highgate farm to a friend to cover a debt she owed.
The trial started Thursday, and jurors began their deliberations later that afternoon.
After 90 minutes, jurors asked a judge if they could go home for the night and return Friday morning to continue. The judge granted the request and the deliberations resumed a little before 9 a.m. Friday.
Less than 10 minutes into deliberations Friday, the jury foreperson delivered a note to the judge that stated one of the jurors reported he may have heard information before the trial started and wanted to speak to someone about it.
The juror was called into the courtroom and questioned by the attorneys as well as the judge. He recalled that after jury selection on Tuesday and before the start of trial on Thursday he believed he heard a news report on the case that included information not admitted into evidence during the trial.
That evidence related to a recorded phone call between McAllister and his accuser played during the trial. The juror reported hearing more of that call than was played in court and it was affecting his ability to reach a verdict in the case.
Katims told the judge that a WCAX-TV report Tuesday on the jury selection process included a longer version of the recorded phone call introduced as evidence in the case.
The juror was eventually dismissed.
In the portion of the call played in court Thursday, his accuser spoke with McAllister of plans that the two had previously talked about to prostitute her to migrant farmworkers to make money, with the pair splitting the proceeds.
McAllister, in the call, then responds, “Like you did with that guy that one time?”
Lavoie told the jurors it was McAllister who set up that meeting with “that guy” referred to in the phone call.
Another juror mentioned in the note to the judge also was called into the courtroom.
He told the attorneys and the judge that the note was wrong.
“False news,” the man said.
He said he had not learned anything about the case overnight. Instead, the juror said, Friday morning he heard a report on the radio that the McAllister trial was underway. He reported hearing nothing else but that bit.
The attorneys agreed to allow that juror to continue to serve.
The judge eventually called in all the jurors into the courtroom, asking them if the dismissed juror had shared the information that he heard outside of the trial. All the jurors said that he had not.
However, the dismissal of the juror prompted Katims to call for a mistrial.
The jurors would be influenced by that dismissed juror, Katims said, and may feel the information could affect their impartiality.
Two alternate jurors had earlier been sent home and discharged from the case by the judge when the deliberations began Thursday afternoon.
Kupersmith on Friday morning called those two alternates back to the courthouse in St. Albans after dismissing the juror.
However, just before those two alternate jurors could be questioned Friday to determine if they had heard any media reports or discussed the case with anyone overnight, McAllister’s attorney as well as the prosecutor, said they agreed a mistrial was in order.
That’s because, they said, rules don’t permit calling back alternate jurors who had been already been excused from a case.
Had those alternates not been discharged, but instead kept at the courthouse while the other jurors deliberated, the situation may have been different, Katims said.
“Next time I’ll do it,” Kupersmith told the attorneys.
The trial this week was the third in recent years for McAllister, a former Republican lawmaker arrested on sex crimes in 2015 outside the Vermont Statehouse where he was serving a senator.
More serious charges against him of sexual assault have either been dropped or resulted in not guilty verdicts following jury trials.
Kupersmith said in court Friday with both the prosecution and defense attorneys agreeing to a mistrial left little option but to grant the request.
“I’m going to declare a mistrial, unfortunately,” the judge said.
Katims in his arguments to the jury Thursday, contended McAllister’s accuser, who rented a trailer on the former state senator’s property, made up the allegation against him.
He said it was the woman who raised the suggestion to McAllister of committing prostitution to help pay for shortfalls in her rent and utility bills.
Lavoie, the prosecutor, contended that it was McAllister who suggested prostituting the woman to a friend to pay for the bills he covered for her.
The trial, which had only one day of testimony, featured three witnesses: the accuser and two state police detectives. The woman stood by her account that McAllister had set up the meeting for her to have sex with his friend in exchange for help with a $70 utility bill.
Kupersmith, before declaring a mistrial Friday, said he wanted he to pursue all steps to the “salvage” the trial, but in the end conceded that wouldn’t be possible.
The judge thanked the dismissed juror for reporting that he had remembered hearing something about the case outside the courtroom.
“I commend you for coming forward with the information,” Kupersmith told him.